“Judges Behaving Badly”

That’s the title of a new Writ column by Tony Sebok, addressing the pants case and Judge Bork’s slip-and-fall case.  The whole thing is well worth reading; his conclusion (broader than either part), in part, follows:

The problem, however, is that the real world of litigation has produced a situation where it can take a lot of time and money to cut through all the bluster that makes up so much of a plaintiff’s initial allegations. The Chungs had to spend thousands of dollars whittling Pearson’s case down to its real core. Now, they will have spend thousands more attempting to prove that Pearson is a liar[.] In turn, the Yale Club will have to spend thousands challenging Bork’s claim that he should be able to collect $1 million in punitive and compensatory damages, before his lawsuit is finally reduced to the minor slip and fall case that seems to lie at its core.

The fact that plaintiffs and defendants can use lies and exaggerations tactically in litigation may seem commonplace to lawyers, but I think the public is right to be irate when they see these tactics being used, in particular, by judges who choose to become litigants. The public is upset, I think, because they expect judges to be part of the solution to the problem of dishonest litigants, not part of the problem. They expect – reasonably so – that judges should set a high standard, not lower themselves to the level of the typical litigant.

The civil justice system can only work if litigants monitor themselves, refraining from exploiting the system’s slow and clumsy mechanisms for ferreting out claims that are not true. By refusing to keep their claims and damage demands to a minimum that reflects the true core of their cases, Judges Pearson and Bork help erode public confidence in the civil justice system and weaken the very institution they swore to uphold.

–BC